Susan K. Carpenter, Public Defender,
Rhonda Long-Sharp, Valerie K. Boots, Deputy Public Defenders,
Indianapolis, for appellant
Linley E. Pearson, Atty. Gen.
Thaddeus Perry, Deputy Atty. Gen., Indianapolis for appellee
Appellant and two codefendants were charged with Murder and Felony Murder. A trial
by jury resulted in a finding of guilty. The codefendants received prisons sentences
and appellant received the death penalty. The conviction was appealed and
affirmed by this Court in Averhart, et al. v. State (1984), Ind.,
470 N.E.2d 666.
In September of 1985, appellant, by counsel, filed a petition for post-conviction
relief and a motion for change of judge. Striking resulted in the
choosing of the Honorable Vern. E. Sheldon as judge to try the post-conviction
relief petition. After a long series of amendments and legal maneuvering
[Emphasis Supplied -GDY]
, the cause came to trial and resulted in a denial
of appellant's petition. This is an appeal from that denial.
The facts are: On August 11, 1981, at
approximately noon, three men robbed the Gary National Bank of Gary,
Indiana. The police were informed that a robbery was in progress, and
Police Officer George Yaros responded to the call. He was killed in
an exchange of gunfire with the robbers as they exited the bank.
One of the robbers wore a blue suit. [Averhart -GDY] All
three robbers opened fire and Yaros fell to the ground. The man
wearing the blue suit walked back, kicked Officer Yaros' gun away from him, and
then fired another shot into the officer. [Emphasis Supplied
The three robbers left in a
two-tone blue sedan. A high-speed chase ensued during which the
robber's car stopped, and the man in the blue suit exited the car and discarded
an afro wig he was wearing. The pursuing officer than momentarily
lost view of him. However, workers at a construction site nearby
informed the officer which way the man had gone and also that they had seen the
man place a pistol, a bag, and his jacket in some bushes.
The officer soon caught sight of appellant and identified him by his
clothing. Appellant was arrested and the revolver and other
discarded items were recovered from the bushes. A security
officer also recovered a .44 magnum pistol from behind a supermarket along
the route of the robber's escape. A witness testified that this was
the .44 magnum pistol that he had sold to appellant. Ballistics
tests indicated that this gun had fired the shot which killed Officer Yaros.
In the original record there are 309 photographs taken by
the bank security camera which were introduced in evidence. From an
examination of these exhibits, it becomes apparent that the three robbers readily
can be identified. The photographs show that only one of the robbers
was wearing a suit and only one had an afro hair style.
It also is apparent that all three robbers were wearing
gloves. The last series of photographs, which were taken within
seconds of Yaros's death, show the same three robbers exiting the bank, with
only one of them wearing a suit and an afro hairdo.
Many of the issues, which appellant attempted to raise
during his post-conviction relief hearing and presented on appeal to this Court,
were decided by this Court at the time of the original appeal.
However, in addition to arguing the merits of those issues, appellant cites many
of them as evidence that his trial counsel and his appellate counsel were
- I -
Appellant claims that error occurred at trial when the victim's wife was
permitted to testify on behalf of the State and that the error was compounded
when the State was permitted to introduce a photograph of the victim with his
granddaughter. The fact that this was going to occur was
alluded to by the prosecutor during voir dire examination of the
jurors. This was done without objection. This
matter was covered in the original appeal. Id. at 685.
However, appellant now claims that but for the
inadequacy of trial counsel this error would not have
occurred. Appellant takes the position that he established that the
State's motive in so proceeding was improper in that he introduced an affidavit
signed by a deputy prosecuting attorney, who aided in the trial, to the effect
that the State placed the victim's widow on the witness stand and the photograph
in evidence for the purpose off obtaining sympathy from the jury for the
victim. This affidavit was made after the decision of the Court in
the original appeal that the action of the State was not reversible error.
At the post-conviction relief hearing, the State objected to the affidavit on the
ground of work-product privilege and the post-conviction court sustained the
objection. Delving into the inner workings of the prosecuting
attorney's office at the time of preparation for trial would of course be
invading the work-product privilege. This can be done only
where there is fraud involved. l; Hickman v. Taylor, 329 U.S. 496, 67 S.Ct. 385, 90 L.Ed.
This Court previously held that "[evidence about the victim's family] has no
relation to the guilt or innocence of the accused or to the punishment to be
administered to him, and is ordinarily calculated only to prejudice the
defendant with the jury." Rowe v. State, (1968) 250 Ind. 547, 550, 237 N.E.2d 576, 577-78.
However, as pointed out above, this issue was raised
and was decided against appellant at the trial level and on his original appeal
to this Court. We do not perceive that the opinion of one of the
deputy prosecuting attorneys concerning the State's reason for using the
victim's widow as a witness or introducing the photograph of the victim with his
granddaughter in any way changes the situation.
Even if we would assume for the sake of argument that
the original trial court erred in permitting the victim's wife to testify and in
permitting the photograph of the victim and his granddaughter in evidence, we
cannot say, given the present status of this case, that this issue either rises
to the status of fundamental error or that it demonstrates that trial counsel
failed to render adequate service to appellant at the guilt phase.
Although appellant attempts to argue that he was
not properly identified either as participating in the robbery or as the
triggerman,these contentions are almost
ludicrous in the face of overwhelming evidence presented to the jury in this
case. [Emphasis Supplied
The 309 photographs
taken by the bank security camera gave the jury the opportunity to look at the
perpetrators and identify appellant as one of them beyond any reasonable doubt.
The photographs also show that appellant is the only
one wearing an afro hair style and a suit. The testimony of
eyewitnesses was that the man wearing the suit returned to the fallen officer,
kicked his gun aside, and fired another shot into his prostrate
body. Appellant was pursued and captured wearing the same
suit. The gun, which ballistics showed to be the murder weapon, was
found discarded along appellant's path of flight.
When there is such an abundance of evidence pointing unerringly to the guilt
of appellant, this Court cannot justify a reversal on a ground which could have
had very little if any bearing upon the jury's decision. See:
Osborne v. State (1978) 268 Ind. 392, 375 N.E.2d 1094.
- II -
Appellant claims he is entitled to a new trial because
the State suppressed exculpatory evidence. Following apprehension of
appellant and his accomplices, the police conducted gunshot residue tests on
each of them. The results of the tests were inconclusive; thus, they
were set aside as not being viable evidence. Appellant takes the
position that because the prosecuting attorney did not advise him of the results
of the tests, the State was guilty of suppressing exculpatory
evidence. It cannot be said that the inconclusive tests are
exculpatory of appellant and his accomplices. This is especially true
when one examines the photographs, including the photographs taken a few seconds
before the victim was shot, in which it is apparent that each of the robbers was
wearing gloves at the time of the robbery. Under those circumstances,
the State was entitled to presume the gunshot residue tests were of no value.
From the evidence in this case, including the
photographs taken by the bank security camera, the jury was entitled to find the
defendants were in fact the robbers, that each of the robbers fired shots, and
that each of them was wearing gloves at the time. In light of the
State's vicarious liability theory, we hold no reversible error occurred at the
guilt phase by the State's withholding of that information. We
reserve our ruling with respect to the sentencing phase for later in this
- III -
Appellant contends the trial court erred in considering
a prior conviction that was vacated after the trial concluded and after the
death penalty had been imposed. There is no need to address this
issue in light of our remand order.
- IV -
Appellant claims the post-conviction relief court erred in permitting the State
to violate an order of separation of witnesses during the post-conviction
hearing. Although the court had entered an order of separation
of witnesses, the State was permitted to have appellant's trial counsel remain
seated at counsel table during the entire hearing. It has long
been the standing practice in this State, upon separation of witnesses, that each
party has a right to have one person in the courtroom to aid
counsel. Abercrombie v. State (1985),
Ind., 479 N.E.2d 1236.
In the case at bar, appellant was directly attacking his
trial counsel in his post-conviction relief petition. It is obvious
that counsel would be the person designated by the State to remain in the
courtroom to aid in the presentation of the State's evidence. The
post-conviction court did not err in permitting appellant's trial counsel to
remain at the State's table during the entire proceeding.
- V -
Appellant contends he is entitled to a new trial because he received ineffective
assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). To attempt to support his claim, appellant has
cited a myriad of incidents of second-guessing as to why he feels he was not
adequately represented in his original trial, some of which have been stated
above. Counsel in this case was faced with an exceedingly difficult
task in attempting to present a defense. The identification of the
three perpetrators of the robbery and of appellant as one of them is
overwhelming. Defense counsel was an attorney of considerable
experience in defending criminal cases, including capital cases.
The trial record in this case consists of nearly three thousand
pages. When viewed overall, it becomes apparent that
appellant's counsel defended him properly at the guilt stage. In
a case of such magnitude, it is virtually impossible for counsel to have operated
perfectly in every respect. This reality was recognized by the
United States Supreme Court in Strickland. It has been held
repeatedly that a defendant is not entitled to a perfect trial, but is entitled to a
fair trial, free of errors so egregious that they, in all probability caused the
conviction. See: Brewer v. State (1986), Ind., 496 N.E.2d 371,
cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d
We also would observe in passing that an examination reveals the trial court's
judgment in rendering appellant's sentence is thorough and quite well
prepared. The same is true of the findings of fact, conclusions
of law, and judgment rendered by the post-conviction court
judge. In each instance, the statutes of Indiana and the
Constitutions of the United States and of Indiana were scrupulously adhered
to, and appellant was afforded every judicial consideration required by law.
Likewise, the Public Defender of Indiana, at the post-conviction hearing and on
this appeal, meticulously combed the record in this case and has presented
every conceivable issue under which appellant might have been afforded
relief. Notwithstanding the competency and hard work of the
trial, appellate and post-conviction counsel, the evidence of
guilt in this case is so overwhelming that it is unrealistic to expect the
relief prayed for [Emphasis Supplied -GDY]
under this section of appellant's brief.
- VI -
Appellant also contends he received ineffective assistance of counsel at the jury
and judge sentencing phases of the trial. With respect to this
ground, the post-conviction court made the following findings:
That, as disclosed at the post-conviction relief proceedings, there were a
number of witnesses who might have testified during the penalty phase of the
trial concerning Petitioner's upbringing, his family, his education, his artistic
talent, and other life activities.
The names of such witnesses were not disclosed to Petitioner's trial counsel by either Petitioner,
or Petitioner's mother, Orlena (sic) Averhart.
. . . . . .
That it was the impression of Petitioner's trial
counsel that the evidence against Petitioner was "overwhelming" at both the
trial and penalty phases, and that he had done everything that could be done
Post-Conviction Record at 1233.
The post-conviction court concluded:
Petitioner was not denied effective assistance of counsel because Petitioner's trial counsel
failed to present any mitigating evidence during the penalty phase of the trial.
The decision of Petitioner's trial counsel with respect
to mitigating evidence was supported by reasonable, professional judgment, and
thus, met the standard....
Id. at 1246.
In Strickland the Supreme Court articulated a two-part inquiry into a defendant's claim that his
conviction or death sentence should be reversed because defense counsel's assistance was
ineffective. The Court stated that, for purposes of describing counsel's duties,
Florida's capital sentencing proceeding is sufficiently like a trial in its adversarial format and in the
existence of standards for decision that it need not be distinguished from an ordinary
trial. Strickland, 466 U.S. at 686-87, 104 S.Ct. at 2064. As
Indiana's capital sentencing phase is similar in format to that of Florida, we do not distinguish here
between counsel's duties at trial and during the penalty phase. See: Lownefield v.
Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988); Bellmore v. State (1992),, Ind.,
602 N.E.2d 111. This Court adopted the Strickland test in Lawrence v. State (1984), Ind., 464 N.E.2d
Under the applicable two-step analysis, the burden is on the defendant to show that his trial
counsel's performance was deficient at the sentencing phase. The performance
inquiry must be whether counsel's assistance was objectively reasonable considering all the
circumstances. The second step focused on a required showing of actual prejudice
to the defendant. The defendant must affirmatively prove that "there is a
reasonable probability, that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
In reviewing the judgment reached by the trial court finding against appellant on this ground, we
accord the trial court with the sole authority to judge the weight of the evidence and the
credibility of witnesses and will reverse only if the evidence is undisputed and leads inevitably to a
conclusion opposite to that reached by the trial court. Eliacin v. State (1979), 269 Ind.
305, 380 N.E.2d 550.
We see reversible error here.[Emphasis Supplied
-GDY] No evidence at all of mitigating circumstances was
presented by the defense at the sentencing hearing before the
jury. The jury recommended the death penalty. No evidence
of mitigating circumstances was presented by the defense at the sentencing
hearing before the sentencing trial judge; appellant and his mother were the
sole witnesses at the sentencing hearing.
At the sentencing hearing before the judge who presided
over the trial, proof of appellant Averhart's capacity to intentionally kill was
right there on the bench in the trial evidence. What was not there on
the bench was the product of an investigation by defense counsel into the
defendant's background for the purpose of generating and presenting legitimate
evidence of mitigating circumstances to the judge. The job of defense
counsel at this final sentencing stage is profoundly important: It is
to continue being an adversary to the prosecution and to challenge the
conscience of the judge.
In preparation for the penalty phase of the trial, defense counsel familiarized himself with the
statutory menu of mitigating circumstances, the spoke with Averhart and his
mother. It was decided that both would testify at the time of the judge sentencing
hearing. Defense counsel testified at the post-conviction hearing that he did not
make any investigation of other possible witnesses. He did not discuss with
Averhart or his mother what they might testify to before the judge. Counsel put on
what he termed a "free from" sentencing hearing. He basically asked the mother
two questions: whether she had anything she would like to say to the court; and
once she answered, he asked, "Anything else?" He then put Averhart on the
stand. He established that Averhart wanted to make comments to the court and
then told his client to "go ahead." Counsel prepared no questions to guide their
disclosures. According to the findings below, defense counsel, confronted with
overwhelming evidence of guilt, capitulated. He naively relied upon the system
generating presentence reports to produce his mitigating evidence, and then relied upon the
capacity of the trial judge to discern the right result. In effect, counsel threw his
client on the mercy of the court. While defense counsel's efforts might be effective
representation at an ordinary felony sentencing hearing, it cannot possibly pass muster at the type
of capital sentencing hearing mandated by the legislature in the death sentence
statute. Blake v. Kemp, 758 F.2d 523, 533 (11th Cir. 1985).
At the post-conviction hearing, evidence of appellant's extreme disadvantage, as well as his
worthy habits and accomplishments were presented. The proven existence and
availability of this body of proof commands the conclusion that trial counsel's performance in
preparing for and conducting his client's case at the sentencing was deficient, and that the
probability that his client would have received a lesser sentence but for this deficiency is
"sufficient to undermine confidence in the outcome." Strickland, 466 at 694, 104 S.Ct. at 2068.
On this basis, the judgment of the trial court denying post-conviction
relief must be reversed and the case remanded to grant post-conviction relief in
the form of a new death sentence hearing before the judge.[Emphasis Supplied
While we have determined in section II, above, that the failure of the State to disclose results of
the gun shot residue tests of appellant and his accomplices, or the data sheets made in conjunction
with them, does not warrant a new trial on the charges in light of the vicarious liability theory
upon which the case was based, the impact of this failure upon the sentencing phase of the trial
before the jury is otherwise. With respect to this ground, the post-conviction court concluded:
Petitioner was not unconstitutionally deprived his right to effective assistance of counsel
and a fair trial at any phase of the trial due to the State's unlawful and prejudicial
suppression of alleged exculpatory and impeaching evidence, to-wit: the
results of gunshot residue tests prior to trial as alleged in Paragraph (r) of Petitioner's Amended Petition.
Post-Conviction Record at 1241.
The prosecution did not inform defense counsel, in response to a specific request for the results of scientific tests,
that it had received a written report of a gunshot residue test reporting that no particles of gunshot residue were found on
the disks which had been daubed on appellant's hands. Appellant alone received the death sentence by the
judge. That sentence, in turn, is based upon the factual conclusion reached by the jury at its sentencing
hearing that it was appellant, and not one of his two accomplices, who returned to the fallen officer and fired the fatal
shot into him. That was not a necessary conclusion for the jury to reach in returning verdicts of guilty, but
it was at the sentencing hearing. The report, while inconclusive in the sense that the negative results do not
alone support a conclusion that appellant did not fire a gun during the robbery, nevertheless satisfies the materiality
standard at a capital punishment hearing. An item is material for this purpose if the failure to release it to
defense counsel undermines confidence in the jury's recommendation. United States v. Bagley, 473
U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985). Here, Exhibit 7, the gloves connected with
appellant, had holes over the knuckles the size of a dime and a hole over the back of the hand the size of a golf
ball. There was expert evidence at the post-conviction hearing that the holes could have admitted
residue. The absence of gunshot residue on
the disks forms part of a chain of circumstantial evidence pointing away from
appellant as the triggerman. Confidence in the manner in which the
jury evaluated the aggravating circumstances with respect to appellant cannot be
maintained in this atmosphere. On this basis, the judgment of the
post-conviction court is also reversed and a new jury, sentencing hearing
ordered. [Emphasis Supplied -GDY]
- VII -
Appellant also claims his case should have been severed
from his codefendants for the penalty phase. We see nothing in this
case to justify such a position. There is nothing in this record to
indicate the presence of the codefendants in any manner jeopardized appellant's
- VIII -
Appellant alleges his appellate counsel in his original
appeal was ineffective and claims he demonstrated a lack of ability to "present
errors of fundamental magnitude not reserved in the motion to correct
error." Here, as in the case of the trial counsel, appellant engages
in a lot of second-guessing as to what his counsel might have done in preparing
However, an examination of this record shows that
appellate counsel raised twenty-three separate errors for this Court to
determine in the original appeal. This Court's opinion was in excess
of twenty-three pages and covers most of the issues which appellant now attempts
to raise in this appeal. There is no indication that appellant
received ineffective assistance from counsel on his original appeal.
- IX -
Appellant contends the post-conviction court made
numerous errors during the course of the post-conviction
proceeding. Because these errors may implicate the determination of
guilt as well as of sentence, we consider them all. Through
interrogatories, appellant requested information concerning the State's decision
on bringing charges against appellant and its conduct before the grand
jury. He claims the post-conviction court erred in not ordering this
type of discovery.
He also claims the post-conviction court should have ordered the State to furnish appellant with
complete copies of all police reports. Appellant also contends his
conviction and sentence of death were tainted by racial bias from the time of
his arrest to the day his sentence was imposed. However, we find
nothing whatsoever in this record to support such a claim. [Emphasis Supplied -GDY]
Appellant claims the court's rulings in this regard prevented
him from demonstrating the racial bias.
Appellant called Jackie Reuter as a witness. Reuter served on the jury that
convicted appellant. The State objected on the ground that the jury's verdict
cannot be impeached. The post-conviction court sustained the objection and
refused to allow Reuter to testify. In support of his position, appellant cites
Tanner v. United States,
483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), for the proposition that a
juror should be allowed to testify as to reasons for the verdict despite the
rule against juror impeachment of verdicts.
However, the Tanner
exception is for prejudicial information improperly brought to the jury's
attention or for outside influences brought to bear upon the
jury. Appellant states that Reuter would have testified that her
reasons for voting to impose the death penalty were because appellant was
singled out at trial as the person who shot the police officer from a distance
of one and a half feet and because no mitigating evidence was presented in his
This testimony did come within the Tanner exception and in fact would have added nothing
to the evidence otherwise before the court. We see no reversible
error in refusing to allow Reuter to testify.
Appellant also contends the court erred in permitting
the State a continuance to pursue discovery. There is no merit
whatsoever to this contention.
Appellant called two expert witnesses and attempted to have them testify as to the statistically
significant results of a study that showed a death-qualified jury to be more likely to convict than
a non-death-qualified jury and also to have them testify that, in their opinion, appellant's trial
counsel did not demonstrate proper skills in attempting to defend appellant. In
his findings of fact in this case, the post-conviction court stated:
That neither of said experts who so testified had practiced law, or been admitted to
practice, in the State of Indiana, and neither was shown to be familiar with the procedures
of the Gary, Indiana or Lake County, Indiana Police Departments.
That neither of said experts had been in attendance at
the original trial proceedings.
Post-Conviction Record at 1234.
The court found that one of the experts was an attorney
from the Public Defender's Office in the State of Illinois and had experience in
trying and supervising the trials of other Public Defenders in death penalty
cases, and in that witness's opinion, there had been considerable development in
recent years of the manner in which capital cases should be tried and that his
opinion as to the trial counsel's competence would not have been the same if
rendered in 1982.
Likewise the court found that the other expert was an
active professor of law at Indiana University School of Law and had authored
articles in books about trial tactics, had only tried six jury cases during his
professional career, and had tried one murder case while sitting in a second
chair. His trial experience was limited to his practice in the states
of New York and North Carolina.
The court further found that there was no testimony from either of these experts as to what trial
counsel did or did not do in his representation of appellant that was a mockery of justice or so
shocking to the conscience that it would disqualify appellant's counsel under the Strickland rule. We agree with the
post-conviction court in its observations and find no error in regard to the
post-convictions court's ruling as to these witnesses.
Appellant also claims the findings of fact and conclusions of law of the post-conviction relief
court were inadequate. Rather than being inadequate,
however, the post-conviction court's findings of fact and conclusions of law are
so thorough and detailed that they might well be used as model for other judges
presiding in post conviction relief hearings. [Emphasis supplied -GDY]
For the most part, the issues attempted to be raised by
appellant in this portion of his brief are nothing more than an attempt to have
a compete reevaluation of his arrest, the charge, the original trial, and the
original appeal. [Emphasis Supplied
Post-Conviction Rule 1 specifically states that post-conviction remedy is not a
substitute for appeal. The only justification for raising these
issues at this time is in an attempt to demonstrate ineffective performance of
trial and appellate counsel. This appellant has failed to demonstrate
Appellant claims the post-conviction court erred when
it failed to inspect the State's files in camera to determine whether additional
evidence had been suppressed. In order to facilitate the briefing of
this issue on appeal, the appellant, in November of 1988, filed a petition for
writ of certiorari, asking this Court to order the trial court to certify his
sealed offer to prove. The offer related to what the appellant
designated as newly-discovered evidence concerning irregularities in the police
department regarding the investigation and the preservation of evidence in his
In November of 1988, this Court issued an order
granting such a petition for certiorari. In July of 1990, appellant
filed a "Verified Request to Supplement Ex Parte Offer to Prove." In
August of 1990, this Court issued an order to remand this case to the trial
court in order that it might examine appellant's alleged newly-discovered
evidence and the police files pertaining thereto. This Court,
however, denied appellant's request this be done in the absence of the State and
ordered that an in camera hearing be held by the trial judge in the presence of
Upon remand, the trial court conducted in camera
hearings with both counsel for defendant and the State present. Due
to the nature of the allegations, it was necessary for the trial judge to travel
from Fort Wayne to Lake County to inspect the police records in Lake County.
On July 30, 1992, the trial judge, after meticulously
exploring each of the many allegations contained in appellant's claims of
newly-discovered evidence and improper conduct, made his report to this Court,
including his findings of fact and conclusions of law. The trial
court considered evidence of thirteen different items, including an unrevealed
statement of a prosecution witness, an undisclosed 1948 conviction of a
prosecution witness for reckless homicide, dispatch tapes made at the time of
the crime indicating a possible fourth suspect wearing a grey suit, expense
payments to prosecution witnesses, a special police escort for two witnesses on
the day of trial, joint meetings between the prosecution and two crucial
witnesses, and a photo array in the prosecutor's file. Among other
things, the trial judge on remand concluded that the items lacked materiality to
either guilt or punishment, that they did not demonstrate the use of perjury or
other acts of misconduct by the prosecution or police in the nature of
suppression, exploitation or interference with the defense and that their
existence, nature and handling did not show a denial of federal due process.
Following remand, additional briefing was allowed. In light of our remand for
new sentencing hearings, we need not consider the items of evidence and their materiality and
handling in relation to punishment. The denial of the federal right to a fair trial
occurs, and a conviction must be reversed, if the evidence posited is material in the sense that its
suppression undermines confidence in the outcome of the trial. United States v.
473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). With respect to
the specific items referred to above as example, the undisclosed statement of
the prosecution witness does not contradict his trial testimony, the 1948
conviction is stale and would not lead to useable evidence, the dispatch tapes
are part of the excitement and heated action of the search for suspects, the
type of special treatment of some of the witnesses was usual and ordinary and
does not support an inference of their coercion or purchase, and there was no
indication that the photo array was ever employed. The findings and
conclusions of the trial court are supported by the record and affirmed.
Appellant argues that this Court should as a matter of state constitutional law adopt a stricter
standard governing prosecutorial suppression claims than that employed in the federal system,
and in support cites the action of the Minnesota Supreme Court in State V. Kaiser (1992), Minn., 486 N.W.2d 384. In that case, the
Minnesota Court was faced with gross and intentional misconduct of the
prosecutor, and was thereby moved to employ its supervisory
powers. Here we are not confronted with deliberate suppression and
deliberate prosecutorial exploitation of the fruits of suppression at trial, and
there is no destruction of evidence involved. While this Court has
similar supervisory powers, we are not moved to employ them under these
In his remand brief, appellant also claims the trial
court on remand (1) did not adequately insure the integrity of the police files
to be examined in camera, and (2) erred in excluding the testimony of
codefendant North. With respect to (1) above, appellant was given
multiple opportunities to identify possible files and evidence in the hands of
the prosecution; a specific named officer was designated to gather all of the
police files; and the prosecutor assured the trial court that all files had been
turned over. We find this process adequate. With respect
to (2) above, there was no such final evidentiary ruling, but only a preliminary
one issued in the pre-hearing period that, if the privilege were claimed by
North as a witness at the remand hearing, they the trial court would probably
sustain the claim. In sum, suffice it to say that the trial judge's
detailed work convinces us that appellant's case for a new trial on the question
of guilt has not been enhanced by this remand.
- X -
Appellant finally claims that the post-conviction court was in error in rejecting his claim that
there was error in the instructions on the charge of felony murder. Appellant
claims that the instructions were erroneous in that they did not require the State to prove a class
A felony robbery. With respect to this claim, the post-conviction court found:
That the trial court properly instructed the jury on the elements of the offense of
Felony-Murder, including the underlying felony of Robbery, under I.C. 35-42-1-1 and I.C.
That the trial court instructed the jury that in considering any single instruction the jury should
consider it with all other instructions given.
That trial counsel for the Petitioner failed to object
to any of the instructions given to the jury at the conclusion of the
Post-Conviction Record at 1227.
The felony murder charge alleged that appellant shot
and killed George Yaros while engaged in the process of taking money from David
Reba through the use or threat of use of force. This charge does not
specifically allege the statutory aggravating factors required for the class A
felony of robbery. The felony murder statute requires that the death
of another result during the commission of the felony of
robbery. Robbery is defined at Ind. Code 35-42-5-1. There
is no basis in this charge, the felony murder statute, or reason itself, to
condemn the court's instructions.
Appellant relies upon Rodriguez v. State (1979), 179 Ind. App. 464, 385 N.E.2d 1208. This case
holds that there are no lesser homicides within felony
murder. Appellant relies upon the general attempt statute, I.C.
34-41-5-1, which commands that an attempt to commit a crime is a felony of the
same class as the crime attempted. We see no basis in these
authorities for appellant's claim.
In addition to the lack of a sound argument on the
merits and lack of an objection to the court's instruction as required by Ind.
Trial Rule 51(C), noted above from the post-conviction court's findings, there
is additional reason to reject this ground as a basis for post-conviction
relief. In this instance, the sentencing court merged the felony
murder conviction with the intentional murder conviction, and sentenced
appellant to death upon the intentional murder conviction. If one
assumes incomplete or vague jury instructions on the charge of felony murder,
such assumption would not in the interests of justice require the granting of
post-conviction relief in the form of a new trial on one or all of the charges.
The judgment of the
post-conviction court is reversed, and the case remanded with instructions to
set aside the sentence of death and to grant post-conviction relief in the form
of new jury and judge sentencing hearings [Emphasis Supplied
, or in the absence of
such new hearings, the imposition of a sentence of years.
SHEPARD, C.J. and DeBRULLER, DICKSON and KRAHULIC, JJ.,
GIVAN, J., dissents with separate opinion.
GIVAN, Justice, dissenting.
I respectfully dissent to the majority opinion's
remanding of this case to the trial court for re-sentencing.
The majority takes the position that the trial counsel
was ineffective because at the sentencing hearing he made no effort to bring
forth "mitigating circumstances." The only hint of a possibility of
mitigating circumstances in this case we find in the statement of the
post-conviction court wherein it observed that "there were a number of witnesses
who might have testified during the penalty phase of the trial concerning
petitioner's upbringing, his family, his education, his artistic talent, and
other life activities." These general statements alone hardly are
sufficient to support a finding that trial counsel was ineffective for failing
to dwell on these so called mitigating circumstances.
Given the gravity of this crime
and the overwhelming evidence against appellant, it hardly could be perceived
that had evidence been presented that he had served in the Peace Corps and
taught Sunday school that his sentence should be mitigated. [Emphasis Supplied -GDY ]
A fabric of reversible error which the majority opinion
seeks to weave reminds me of the story we heard in childhood of the king and his
fine clothing. Like the king in the story, the majority opinion
marches naked into the trial court for a rehearing.? I cannot justify
impinging the trial court with a fourth rehearing of this cause.